Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 446
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Senan Allen

The court ordered that Google Ireland Limited had to provide the information relating to the email ‘irishpeople2021@gmail.com’. It was alleged that the email account was being used to damage the company’s business by making false accusations to the plaintiff’s customers.

Background

The plaintiff is a well-known supplier of temporary structures including offices and toilet blocks. In March and April 2021, emails were sent directly to the senior management of the company’s customers. The emails made several accusations, including that Portakabin was having difficulty getting regulatory approval for its products and that one of their senior staff members resigned due to ongoing issues with product quality.

There were also allegations that the Portakabin staff were incompetent, dishonest and were taking “back handers.” The emails were signed “John Smith” which was presumed to be a pseudonym.

The emails were part of a wider issue for the plaintiff. In October 2020, anonymous letters were also sent to the plaintiff’s customers which alleged criminal misconduct against named individuals. An external review proved those allegations to be false.

In light of the potential damage that these defamatory allegations to the Portakabin business, the company (and its English parent) brought High Court proceedings against Google seeking information that would identify the user of the account.

After the application had been issued, the court received a letter from the anonymous John Smith. The person claimed to be a whistleblower. They asked that the court refuse to make an order that would give up their identity and claimed that there would be no further communications from the account as it had been deleted.

While Google did not attend the application, it had corresponded with Portakabin about the appropriate form of order. Further, Google reserved the right to raise any further issues if the court’s order was not consistent with their approved draft order.

High Court

The court began by noting that it was not convinced that Google was entitled to let the application go uncontested and then re-open proceedings if it was dissatisfied with the order of the court. However, the draft order and final order did not differ materially in the case, so it was not necessary to make a determination on that issue.

The court then considered the case law, including Parcel Connect Limited T/A Fastway Couriers v. Twitter International Company [2020] IEHC 279 which held that the court’s jurisdiction to make a Norwich Pharmacal order was well-established.

The court also considered the recent case of Board of Management of Salesian Secondary College (Limerick) v. Facebook Ireland Limited [2021] IEHC 287, which related to the identification of individuals making vulgar and offensive comments about a school. In that case, the trial judge referred questions of law to the CJEU regarding the entitlement of an individual to post material online anonymously, and whether such persons might be allowed to make anonymous submissions to court.

It was held that the Salesian case could be distinguished from the present case due to the reasons that the order for information was being sought. In Salesian, the school was seeking the information to engage in disciplinary action whereas in the present case, Portakabin was seeking to remedy defamation and the wrongful damage to its business. While Portakabin also sought to take disciplinary action against the person (assuming they were an employee), the court held that there was an established public interest in the protection of Portakabin’s reputation in the case. Accordingly, personal data concerns were not engaged to the same extent as in Salesian.

Given that the person described themselves as a whistleblower, the court considered whether the Protected Disclosures Act 2014 applied to protect the email account holder. After considering the sections of the Act, the court held that it did not prevent any disclosure in the case.

The court stated that a person could not bring themselves within the meaning of the Act simply by declaring themselves to be a whistleblower. It was also noted that immunity from civil suit for making a protected disclosure did not include defamatory comments, which were expressly excluded from the Act. The Act did not prevent a person from bringing proceedings to vindicate their good name, which was dependent on identifying the person who made the allegedly defamatory statements.

Conclusion

Accordingly, the court granted the orders sought, subject to an undertaking that Portakabin would only use the information to pursue the individual for defamation/redress and any potential disciplinary action. By agreement of the parties, there was no order as to costs.